Who You Gonna Call? Your cell phone service provider knows…

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Sasha VanDeGrift  by Sasha VanDeGrift

Think all that data cell phone service providers collect on their customers stays private? Think again…

Recently, the Second District Court of Appeals held that cell phone customers have no reasonable expectation of privacy in records maintained by their cell phone service providers. State v. Neely, 2nd Dist. No. 24317, 2012-Ohio-212. (For the full Opinion, please see the following website: http://www.sconet.state.oh.us/rod/docs/pdf/2/2012/2012-ohio-212.pdf .)

In Neely, the defendant was indicted for trafficking in cocaine based on the records from his service provider, including:

1) his identity;
2) all of his incoming or outgoing calls; and
3) the duration of those calls.

The defendant moved to suppress that evidence, citing to State v. Smith, in which the Ohio Supreme Court held that the police may not search a person’s cell phone without a warrant, even if the person is lawfully under arrest, absent exigent circumstances such as risk to the officer’s safety or imminent destruction of evidence. State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949. The defendant in Neely argued that the Smith case mandated the cell phone records from his service provider be suppressed as well.

The trial court disagreed. The reason? The prosecution followed the procedure set forth by the Electronic Communication Privacy Act, 18 U.S.C. § 2703(c)(1)(B) and obtained a lawful court order for the defendant’s cell phone records from his service provider. In essence, having a court order was analogous to having a warrant.

On appeal, the defendant argued that the Fourth Amendment gave him a privacy interest in his service provider’s records. The Second District flatly rejected this argument, indicating that the United States Supreme Court has taken “pains to reject the claim that persons have a reasonable expectation of privacy in the numbers that they dial from their phones.” The Second District pointed out that the public generally knows that service providers maintain numerical information on customers’ cell phone usage for a variety of legitimate business purposes. Accordingly, “it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”

Ultimately, the Second District upheld how the prosecutor obtained the cell phone records and the defendant’s conviction. The Second District remanded the case for the sole purpose of having the trial court re-determine the court costs that the defendant was obligated to pay.

Now, while the Second District has spoken, the Neely case may not be over. The defendant in Neely could ask the Ohio Supreme Court to review the Second District’s opinion. It remains to be seen whether the Ohio Supreme Court will find the defendant’s privacy arguments to be matters of great enough public concern to justify accepting the case for review.

While Neely is a criminal case, it serves as a good reminder for all of us that we can never assume that any information known to others is “private.”

So, who are you going to call now?

Interesting article on how Twitter is changing media law

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Sasha VanDeGrift  by Sasha VanDeGrift

This article does a nice job of highlighting some of the legal issues that can arise out of a 140-character message on Twitter. Sometimes, saying less can get you into more trouble…

Here are five examples that show how Twitter’s unique platform is creating a new set of media rules that are forcing the law to play catch up.

Fired for “Pants on Fire”: When Lies, GPS, and Employee Handbooks Meet

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Sasha VanDeGrift  by Sasha VanDeGrift

One of the staples of the little kid lexicon is the expression “liar, liar, pants on fire!”  While there appears to be no direct correlation between flaming trousers and someone taking liberties with the truth, there does appear to be a common correlation between lying at work and getting fired.  It might have something to do with employers thinking that if they pay someone, they should be able to trust his or her word.  Silly employers!

Even employers in significant positions of public trust occasionally find their employees’ britches burning.  Case in point: Philip Mordick v. City of Dayton.  In Mordick, the City of Dayton fired Mordick, a police officer, after he filed a false report of his whereabouts while he was on patrol.  Mordick, 2nd Dist. 24663, 2012-Ohio-289 (for the full text of the Opinion: http://www.sconet.state.oh.us/rod/docs/pdf/2/2012/2012-ohio-289.pdf). 

Officer Mordick probably should have realized that his lie was likely to be discovered: he filed the false report in front of another officer, Officer Cash, while they were in the same police cruiser.  When Officer Mordick left the cruiser, ostensibly looking for his wayward girlfriend, Officer Cash contacted their sergeant and informed him that she and Officer Mordick were not at the location that Officer Mordick had reported.  The sergeant verified Officers Mordick and Cash’s location by tracking the cruiser’s GPS unit, confirming that Officer Cash was telling the truth and Officer Mordick had lied. 

When Officer Mordick returned to the cruiser, he called the sergeant, who asked Officer Mordick where he really was.  Officer Mordick admitted his true location.  Then, Officer Mordick drove to the location where he had falsely claimed to be. 

The City of Dayton charged Mordick with several violations of the Civil Service Rules and Regulations (the “Regs”) (basically the employee handbook for the City of Dayton police), including Rule of Conduct 8.5, which specifies:

No officer will knowingly falsify any report, document, or record or cause to be entered any inaccurate, false, or improper information on records, documents, or reports of the Department or of any court or alter any record, document, or report except by a supplemental report, document, or report. If an investigation reveals that an officer has violated this section, their employment with the Dayton Police Department will be terminated.

The City of Dayton found that Officer Mordick had violated the Regs and terminated his employment.  That decision was affirmed by the Civil Services Board, the Montgomery County Common Pleas Court, and now by the Second District Court of Appeals.

Most “pants on fire” cases are not this clear-cut.  More importantly, not all policies plainly state that “if you lie about X, we will fire you.”  The takeaway:

  • For employees: lying at work is a bad idea, especially in front of a witness and in a GPS-equipped vehicle.
  • For employers: when the evidence is clear that an employee was lying and you have a very carefully drafted policy specifying that the particular type of lie is grounds for termination, that is strong evidence in favor of termination.  It might seem a little late in the year for New Year’s Resolutions, but it is always advisable to dust off the employee handbook and give it a fresh read. 

Honesty is always the best policy, especially when that policy is clearly spelled out in writing…

Employer Collective Arbitration Prohibited

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David Pierce by David Pierce

In a victory for employees, the NLRB recently held in D.R. Horton, Inc., 357 N.L.R.B. No. 184 (Jan. 2012), that an arbitration agreement that prohibits employees from filing class action lawsuits violates the National Labor Relations Act.

In D.R. Horton, the company required employees to sign an agreement that required them to arbitrate their disputes. However, the agreement provided that the arbitrator would not have the power to consolidate claims or award relief on a class basis.

The Claimant’s attorney notified the company that he had been retained to represent a class of employees in a Fair Labor Standards Act case contending that the employees had been improperly classified as exempt and that he wished to arbitrate the dispute. In response, the company cited the class prohibition in the arbitration clause and claimed the notice to arbitrate was ineffective.

The NLRB in a 2-0 decision found that filing a collective or class action claim constituted protective concerted activity which is protected by Sections 7 and 8(a)(1) of the National Labor Relations Act.  Moreover, the Board determined that such an arbitration clause would cause employees to believe they were prohibited from filing an Unfair Labor Practice charge.  Therefore, the Board determined that such arbitration clauses are prohibited. 

The Board’s decision is significant.  It applies to both union and non-union employers. Furthermore, it casts renewed doubt on the utility of employment arbitration clauses as a means of eliminating class action disputes. Such clauses had become more popular in light of a recent U.S. Supreme Court case enforcing an arbitration provision that prohibited class action lawsuits by members of the public. AT&T Mobility v. Conception, 131 S. Ct. 1740 (2011).

Employers are cautioned to have their arbitration clauses reviewed by counsel before asking their employees to sign them.  In addition to problems with clauses that prohibit class actions, courts have found other restrictions in employer/employee arbitration clauses to be unconscionable or unenforceable.   Similarly, companies should carefully consider whether they want to include arbitration clauses as a means of alternative dispute resolution in other business agreements.  This is especially true because the traditional benefits of arbitration (i.e., faster and cheaper resolution) may not be present depending upon how the arbitration provision is drafted.

Are You a State Funded Employer For Workers’ Comp Coverage But Unable to Qualify for Group Rating in the Past?

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David Korte  by David Korte

If so, legal action has been initiated on your behalf in the Cuyahoga County Court of Common Pleas, suggesting that, by providing discounted premiums to employers that qualified for Group Rating discounts, the Ohio BWC conversely charged unnecessarily high premiums to state fund employers that did not qualify for the discounts. The time frame for which damages are requested begins in July, 2001 and runs for a period of 7 years. At this point, the BWC, as expected, denies inappropriate or inequitable results from the Group Rating discount programs in which many employers have participated through the years.

Many of you may have already received notice of this class action. If you believe you fall into the category of employers affected during the time frame involved, you don’t need to do anything to possibly qualify for damages resulting from the action. However, if you might otherwise qualify for those damages, but don’t wish to partake in same, you must complete written notice, to be filed with the court and with the attorneys for the named parties, in order to be excluded from any economic benefit to be derived from the cause of action. There are benefits and detriments with both options, primarily centering on protecting your company’s individual right to pursue damages under the same theory.

Social Media Posts as Evidence? The Verdict is YES!

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Sasha VanDeGrift  by Sasha VanDeGrift  

My mother used to always say that once your opinions hit the air, you are responsible for them. Like mothers usually are, she was right. But her advice is even more significant in the age of social media. A moment shared on Facebook or MySpace with 587 of your closest “friends” can truly come back to haunt you, not just in social settings, but also in court.

That’s right: the seemingly innocuous post today could be an opponent’s key piece of evidence tomorrow. I recently experienced this representing a client in an administrative hearing. Prior to the hearing, my client, a skilled internet sleuth, found some really good dirt on our opponent that our opponent had been kind enough to announce on his Facebook wall. Even better, our opponent had never elected to change his Facebook settings to make his wall content private. Without even being his “friends,” my client and I were able to see everything ever posted on our opponent’s page.

Before using this evidence, I did some legal research to see if any courts in Ohio had relied on social media pages as evidence. In fact, several local courts have admitted social media evidence:

  • State v. Hause, 2009-Ohio-548, Warren App. No. CA2008-05-063:
    • The Twelfth District Court of Appeals affirmed the conviction and sentence of a part-time school district employee stemming from pictures she posted on Facebook showing her providing alcohol to minors.
  • Gillum v. Gillum, 2011-Ohio-2558, Montgomery App. No. 24401:
    • The Second District Court of Appeals affirmed a decision by the Domestic Relations Court decision not to remove children from their mother’s custody based on content posted on the mother and daughters’ MySpace pages the father felt were “inappropriate.” The 13 and 15 year old daughters had posted pictures of themselves in swimsuits with captions like “sexii” and “one sexii cowgirl.” The mother had posted that the father was “fat,” “ugly,” and that he and his new wife were “sinners.” The Second District found that the posts were “problematic,” but that the danger posed by the posts was not significant enough to warrant a change in child custody.
  • State of Ohio v. McCraney, 2010-Ohio-6128, Summit App. Nos. 24750 and 25285.
    • The Ninth District Court of Appeals affirmed the convictions for two defendants of engaging in a pattern of gang activity based, in part, on pictures from the Defendants’ MySpace pages showing the Defendants wearing gang colors, displaying gang hand signs, standing with known gang members, and paying tribute to a fallen gang member.

The take-away for attorneys and social media users: even in cases given the highest level of constitutional protections (i.e. criminal and child custody cases), social media evidence has been admitted and considered by courts in rendering judgment. Now, it is worth noting that none of the parties in these cases challenged the authentication of the social media pages or raised any other objections to their admission into evidence. How courts have addressed such objections is a topic for another day (stay tuned).

What’s In Store for State Fund Employers from BWC?

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David Korte  by David Korte

The subject of Workers Compensation does not always conjure up visions of good news for employers in Ohio, but there may be some positive developments on the horizon. Consider, for instance:

  • Expected Loss Rates for the next fiscal year are expected to remain the same
  • Cafeteria Plan Discounts are being given serious consideration for implementation in the 2013 Rating Year, with options to include:
    • Drug Free Workplace Discount;
    • Safety Council Participation Discount;
    • Potential Mandatory Vocational Rehab for Claimants (though this would likely require a legislative mandate to change current law). Keep in mind that disability benefits paid to claimants who participate in a BWC approved rehab program are NOT charged to the employer;
    • Transitional Duty Discounts;
    • Discounts if your organization has never had a lapse in BWC coverage;
    • A “Go Green” discount for paying premiums online, instead of by mail.

More to come as the BWC Board of Directors continues to meet and fine tune these possible options.